Should Condemning Affirmative Action Disqualify You from Membership on a State Judicial Conduct Commission?

The New York State Commission on Judicial Conduct has censured Commission Chair Raoul Felder for cowriting (with Jackie Mason) a book called Schmucks! Our Favorite Fakes, Frauds, Lowlifes, Liars, the Armed and Dangerous and Good Guys Gone Bad, and is "exploring [its] options in terms of removing him as Chair." Here's the Commission's reasoning:

Much of the material in this book, and the work as a whole, undermine the appearance of impartiality, and the dignity and probity that is required of the Commission and its Chair. Although the book purports to be a work of humor, much of it is crude, biased, vulgar and otherwise demeaning. For example, we note the following.

  • The book repeatedly invokes racial, ethnic and religious invective. Such statements are inconsistent with the Commission’s role in enforcing the judicial obligations to refrain from words or conduct that manifest bias based on race, religion or national origin, and to require court employees and lawyers to refrain from such conduct.

  • The book asserts that “anytime you hear the word ‘allegedly,’ you can bet it’s true.” Such a viewpoint is untenable from a Commission member whose role is to evaluate allegations of judicial misconduct and identify those that have merit.

  • The book claims that “nothing in our country is more insidious than affirmative action.” Such a sentiment raises a reasonable perception that the speaker could not pass fair judgment on anyone he perceived to have benefited from affirmative action.

Appointed government officials are not shielded by the First Amendment from removal the way citizens are shielded by the First Amendment from criminal punishment or civil liability. High executive branch officials who serve at a President's or Governor's pleasure may be fired for their speech, even if that happens only because the President or Governor thinks the speech is inconsistent with his agenda. (Some states may constrain the Governor's removal power, but that would be under state law, not the First Amendment.) Likewise, other officials might be subject to removal for speech that is seen as inconsistent with their official roles. Also, while there is some uncertainty about this, it may well be that censure ought not be seen as a speech restriction, but merely the censuring body's own attempt to speak and participate in the marketplace of ideas. I do not want to argue that the Commission's action is unconstitutional, and as to the first two grounds it might even be meritorious (though much would depend on the details of what the book said).

But I'm quite troubled by the theory that criticism of affirmative action — even somewhat overstated criticism (I'm sure something in our country is more insidious than affirmative action) — should be seen as casting doubt on the person's fitness to serve on a judicial conduct commission, or as the judicial conduct commission's chair.

The argument that "[s]uch a sentiment raises a reasonable perception that the speaker could not pass fair judgment on anyone he perceived to have benefited from affirmative action" doesn't fly. If someone says "nothing in our country is more insidious than race discrimination," does that disqualify the person, on the theory that he couldn't pass fair judgment on anyone he perceived to have benefited from racial discrimination? If someone condemns the insidiousness of legacy preferences in admission, does that disqualify the person, on the theory that he couldn't pass fair judgment on anyone he perceived to have benefited from legacy preferences?

If someone condemns the insidiousness of corporate welfare or farm price supports, does that disqualify the person from being a judge, on the theory that he couldn't pass fair judgment on people or corporations that were seen as benefiting from these programs? (I take it the Commission wouldn't want there to be "a reasonable perception that the speaker could not pass fair judgment on anyone he perceived to have benefited [from the condemned program]" as to judges as well as to the chair of the Commission on Judicial Conduct.) If someone condemns the insidiousness of abortion, does that disqualify the person, on the theory that he couldn't pass fair judgment on women who have gotten abortions?

Surely not: We assume that people who disapprove of programs are nonetheless able to fairly decide factual and legal questions raised by people who happen to be beneficiaries of the programs; otherwise, nearly no-one would be eligible for judicial or quasi-judicial office. Why would affirmative action be a sacred cow to which this assumption doesn't apply?

I speak here of the Commission's statement and its reasons for the statement; perhaps the book's discussion of affirmative action deserves censure, but I'm relying on the Commission's defense of its own position, which strikes me as quite unpersuasive.

Thanks to David Giacalone for the pointer.